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Judgment
M.M. Das, J.—The opposite party, as plaintiff has filed C.S. No. 86 of 2010 (III) before the learned Civil Judge (Senior Division), 1st
Court, Cuttack with the following reliefs:
(i) Let the defendant be directed to pay the house rent at the rate of Rs. 950/- per the month from Nov. 2007 to 30.9.2008, till the termination of
tenancy;
(ii) Let a money decree be passed directing defendant to pay damages for his unauthorized occupation from 1st Oct. 2008 to end of Jan. 2010 at
the rate of Rs. 950/- thus, a money decree for Rs. 25,650/- as per Schedule-C be passed;
And that, to avoid multiplicity of suit the defendant be directed to pay damages for his unauthorized occupation during pendency of the suit and
also liable to pay damages till giving delivery of vacant possession.
(iii) That the cost of the suit be decreed in favour of the plaintiff and against the defendant;
(iv) And if any other relief/reliefs the plaintiff is entitled to be awarded in his favour.
The plaintiff has alleged that the defendant-petitioner in this writ petition is the tenant in respect of the two shop rooms as described in Schedule-B
of the plaint. The suit is basically a suit for recovery of arrear house rent along with damages. The petitioner has filed the written statement denying
the title of the plaintiff over the said shop rooms, inter alia, claiming his title over the said shop rooms. After framing of issues, the petitioner filed an
application to hear the issue with regard to maintainability of the suit as preliminary issue under Order 14, Rule 2(2) C.P.C. on the ground that he
has categorically stated in the written statement that he is not a tenant under the plaintiff and has claimed independent title over the suit land. It was
further averred by him that in a Bebandobasta Case, which is subjudice before the Tahasildar, Sadar, Cuttack vide Bebandobasta Case No. 39 of
2002, he has filed an objection stitiban over the said suit property and further, at his instance, W.P. (C) No. 261 of 2009 is subjudice before this
Court wherein this Court has passed order of status quo. On that basis, the petitioner claimed that the suit as laid is not maintainable.
The opp. party filed an objection to the said petition stating that the said writ petition, being W.P. (C) No. 261 of 2009 has already been
dismissed by this Court on 21.4.2011. The claim of title by the defendant-petitioner has to be established by him during hearing of the suit as well
as the relationship of landlord and tenant is to be established by the plaintiff during such course of hearing and, if ultimately, the defendant succeeds
in establishing his independent title over the suit premises/shop rooms and the plaintiff fails to establish the relationship of landlord and tenant, then
only, the plaintiff will not be entitled to the reliefs claimed. Such question being a mixed question of facts and law cannot be decided as a
preliminary issue.
The learned Trial Court on hearing the said application by his order dated 22.9.2011 discussing the cases of the parties in detail and referring to
the order of this Court passed in W.P. (C) No. 261 of 2009, by which the writ petition was dismissed, came to the preliminary conclusion that the
defendant-petitioner cannot deny the title of the plaintiff in view of the house rent agreement. The learned Trial Court, however, observed that the
defendant is at liberty to claim title in the suit and hence, the maintainability of the suit due to pendency of the Bebandobasta Case No. 39 of 2002
cannot be taken up as a preliminary issue as the same is a mixed question of facts and law. Holding thus, the learned Trial Court rejected the said
application.
The petitioner being aggrieved filed Civil Revision No. 1 of 2011 before the learned District Judge, Cuttack, who by his order dated
22.11.2011, in view of the amended provision of Section 115 C.P.C., came to the conclusion that the revision is not maintainable. Being
aggrieved, the petitioner has preferred the present writ petition.
Mr. Baug, learned counsel for the petitioner strenuously urged that in respect of a suit for permanent injunction simpliciter, if the defendant
disputes the title of the plaintiff, such a suit cannot be maintained. For the above contention, he relied upon the decisions of the case of Braja
Kishore Sahu and Others Vs. Smt. Sailabala Sahu and Others, and Sudarsan Prusty v. Rabindranath Prusty and others, 1989 (I) OLR 379. He
further contended that proviso to Section 34 of the Specific Relief Act mandates that in a suit for declaration, if consequential relief is available to
the plaintiff, but the same has not been asked for, the suit will not be maintainable. Resting on the above contention, Mr. Baug submitted that in the
present case, there is no tenancy agreement between the plaintiff and the present defendant (writ petitioner). The petitioner has claimed his
independent title and possession over the suit land which is required to be adjudicated. But in a simple Money Suit, the right, title and interest,
under no circumstances, can be adjudicated upon and, as such, when other relief was available to be sought for in the suit, the plaintiff has failed to
ask for the same for which the suit is liable to be dismissed as not maintainable even without recording any evidence. In support of his aforesaid
submissions, he relied upon the decisions in the case of Dulana Dei alias Dolena Dei Vs. Balaram Sahu and Others, and Anathula Sudhakar Vs. P.
Buchi Reddy (Dead) by LRs. and Others, . Mr. Baug, therefore, contended that in view of the law as laid down in the aforesaid decisions, it was
incumbent upon the learned Trial Court to decide the question of maintainability of the suit as a preliminary issue.
Mr. Samantaray, learned counsel for the opp. party-plaintiff, on the contrary, submitted that the pendency of the writ petition, which was taken
as a preliminary ground on the basis of which it was claimed that the suit is not maintainable having already been dismissed, the said ground is not
available to the petitioner-defendant. He further submitted that the learned Trial Court has taken into consideration the fact of dismissal of the writ
petition and also the fact that the question with regard to the claim of title of the defendant over the suit premises/shop rooms can only be gone into
during hearing of the suit, the onus to prove being on the defendant. The suit being one for only recovery of arrear house rent and damages, the
plaintiff will succeed if he proves the relationship of landlord and tenant between the parties. He relied upon the decisions in the case of Orissa
Cotton Mills v. Presiding Officer, Labour Court, Bhubaneswar and two others, 2009 (I) CLR 500, Shyama Sundar Mohapatra Vs. Janaki Ballav
Patnaik and Others, and Baishnab Charan Ray Vs. Debraj Sahoo and Another, .
There is no quarrel with regard to the contention of Mr. Baug that in a suit for permanent injunction simpliciter, when title is disputed, the suit
becomes not maintainable. But, as decided by this Court in the case of Sudarsan Prusty (supra) in such an event, the petitioner is to be given an
opportunity to amend the plaint. However, such an event does not occur in the facts of the present case and, therefore, applying the ratio of the
aforesaid decisions which are in respect of suit for permanent injunction does not arise.
In the case of Dulana Dei (supra), this Court in a Second Appeal against a reversing judgment was considering the question whether a suit for
only declaration, of right, title and interest can be maintainable when no consequential relief has been prayed for. Considering the said question, this
Court came to the conclusion that being able to seek such further relief, when the plaintiff omitted to do so, the suit was hit u/s 34 of the Specific
Relief Act. Concluding thus, this Court remanded the matter back relying upon the decision of the Supreme Court in the case of Mst. Rukhmabai
Vs. Lala Laxminarayan and Others, , wherein it was held that a plea that the plaintiff asked for a bare declaration though he was in a position to
ask for further relief within the meaning of Section 42 and hence, the suit should have been dismissed in limine should be raised at the earliest point
of time, in which event, the plaintiff can ask for necessary amendment to comply with the provisions of Section 42. The Supreme Court further held
in the said case that it is well settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he
seeks to do so. In the case of Anathula Sudhakar (supra), the Supreme Court was of the view that in a suit for prohibitory injunction simpliciter
relating to immoveable property, the suit is concerned with possession only. Therefore, in the absence of necessary pleadings and appropriate
issues regarding title (either specific or implied) decision would be given with reference to finding of possession and not on the question of title. The
aforesaid decisions do not come to the aid of the petitioner in any manner. Further to appreciate the case, it is necessary to refer to Order 14, Rule
2(2) C.P.C. which is quoted hereunder:
Court to pronounce judgment on all issues - (1) xx xx
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on
an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the
suit in accordance with the decision on that issue.
It is trite law by now that the Court can decide an issue as a preliminary issue if it is of the opinion that the case or any part thereof may be
disposed of on an issue of law only and an issue which involves a mixed question of facts and law, cannot be tried as a preliminary issue which is
required to be tried along with all other issues framed as contemplated under Order 14, Rule 2(1) C.P.C. Only in such event, it may try that issue
first if the issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force.
In the facts of the present case, the issue sought to be decided as a preliminary issue by the petitioner does not come under any of the
categories above. As contended by the learned counsel for the opp. party, the claim of the plaintiff can only succeed if the plaintiff will prove the
relationship of landlord and tenant between the parties and the claim of the defendant with regard to independent title over the disputed
premises/shop rooms can also be gone into during the course of hearing of the suit and if the defendant succeeds in proving the same, it would
negative the plea of the plaintiff that there exists a relationship of landlord and tenant between the parties on the basis of which recovery of house
rent has been claimed by the plaintiff along with the damages and in such event, the plaintiff''s suit would fail.
Considering the facts involved in the present ease, this Court is of the view that the learned Trial Court was right in holding that the issue with
regard to maintainability of the suit should not be decided as a preliminary issue inasmuch as the said issue is not an issue as contemplated under
Order 14, Rule 2(2) C.P.C. and such an issue involves a mixed question of facts and law which also cannot be decided as a preliminary issue. This
Court finds that the learned District Judge was right in holding that the Civil Revision was not maintainable in view of the amendment to Section
115 C.P.C. In the result, this Court finds no merit in the writ petition, which is accordingly dismissed. All pending Misc. Cases also stand disposed
of.
The interim order of stay passed earlier stands vacated.